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OBA Ethics Counsel

Ethics Opinion No. 254

Adopted March 14, 1968

INQUIRY

May appointment or employment to defend persons charged with crime be accepted by a lawyer who is associated professionally with an Assistant District Attorney not paid in excess of 65% of the salary of the District Attorney, (a) if such professional association is by partnership or other arrangement in which fees and/or responsibilities to clients are shared, or, (b) if the association consists only of sharing office space or other facilities and involves no sharing of fees or client responsibilities?

OPINION

Pursuant to the provisions of Title 19, Oklahoma Statutes, Section 215.14, as amended in 1967, all Assistant District Attorneys who are paid in excess of 65% of the salary of the District Attorney, shall not engage in the private practice of law. By inference it follows that if such Assistant District Attorney is paid 65% or less of the salary of the District Attorney, he may engage in the private practice of law. It is the opinion of this committee that such right is not unrestricted, but in each case governed by the ethics of the legal professions as established by the Canons of Professional Ethics as adopted and interpreted in this State.

The second paragraph of Canon 6, of the Canons of Professional Ethics reads:

"It is unprofessional to represent conflicting interests except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."

In Formal Opinion No. 16, of the Committee on Professional Ethics of the American Bar Association, dated June 11, 1929, in dealing with the propriety of a member of a law firm acting as the attorney for the defendant in criminal cases which were being prosecuted by another member of the same firm in the latter's capacity as prosecuting attorney, the view was expressed as follows:

"So long as the partnership relation continues between the county prosecutor and his professional associate, it is clearly unethical for one member of the firm to oppose the interests of the state while the other member represents those interests. The positions are inherently antagonistic and this would be so irrespective of Canon 6. No question of consent can be involved as the public is involved and it cannot consent.

In many communities it is the privilege of a prosecutor to continue in the private practice of law during his term of office, but this in no way alters the foregoing conclusions. The prosecutor himself cannot represent both the public and the defendant and neither can a law firm serve two masters. It follows that a partner in such a firm must forego the representation of defendants whose prosecution is the duty of another member who reppresents the public."

In Formal Opinion No. 142 of the Committee on Professional Ethics of the American Bar Association, dated May 9, 1935, it was said:

"A public prosecutor has as his client the State. It is obvious therefore he cannot, appear for any defendant in cases in which the state is an adverse party ...."

The Opinion continues:

"... On several occasions this committee has held that neither a law firm nor a partner thereof can properly accept employment which any member of the firm cannot properly accept. See Opinions 49, 50, 72, 103 and 104.

The committee is therefore of the opinion that it is improper for the partner of an assistant prosecutor to defend any client in a criminal case."

Formal Opinion No. 262, of the Committee on Professional Ethics of the American Bar Association, dated December 16, 1944, takes the position that prosecutors, even when permitted to practice law, may not defend parties accused of crime. Said the committee:

"We hold that the statutory permission to a state attorney to practice law while in office must have been intended to be limited to matters in which the state is not a party."

It is the opinion of this Committee that the above opinions are well considered statements of the ethical problems involved, and are adopted as the opinions of this committee. Consequently, we take the position that a partner of an Assistant District Attorney should refrain from accepting employment either by appointment or otherwise to defend parties charged with crime. An exception is made in the event of Court appointment, in the event the Court should refuse to grant the partners' request for relief from appointment, or in the event it is necessary in a particular community for such partner to accept appointment by the court in order to insure proper representation for an indigent defendant.

It is the opinion of this committee that it will be unethical for an attorney to accept employment to defend one charged with crime where there is no formal partnership existing between such attorney and an Assistant District Attorney, but where there exists a professional association arising out of a division of fees or responsibilities with reference to such party charged with crime. As to such defendant there is in reality no difference in the responsibilities and obligations of an Assistant District Attorney and an Attorney with whom he may be associated in a particular case, than if the Attorneys should in fact be partners. Consequently, the answer to (a) of the question propounded is in the negative.

In the event the relation between an Assistant District Attorney and another Attorney should consist only of sharing office space, or other facilities such as library or secretarial staff, and involves no sharing of fees or client responsibilities, or holding themselves out to the public or fellow lawyers in any manner as being associated in the practice of law to any degree, this Committee holds that the Canons of Ethics would not be violated by acceptance by the attorney of criminal cases, although both attorneys would be subject to the closest scrutiny. This Committee feels that even though the association as outlined above would not be unethical, it would be better practice for one who offices with an Assistant District Attorney under such circumstances, to refrain from accepting criminal cases because it might tend to create loss of confidence by the public in the administration of justice.